THE recently gazetted
presidential proclamation banning the indexing of salaries, wages
and prices of goods is unconstitutional and a violation of international
conventions, labour experts have said.

The experts pointed out
that Statutory Instrument 159 A of 2007 issued two weeks ago under
the Presidential Powers (Temporary Measures) Act (Amendment of National
Incomes and Pricing Commission Act and Education Act) Regulations,
2007, was an attempt by the executive to make up for its failure
to implement sound policies to address the economic crisis bedevilling
the nation.

They said an economy
could not be run by decrees. This demonstrated the extent to which
government dealt in bad faith with its social partners, they said.

A Harare-based
lawyer, Tafadzwa Mapfumo-Muvingi, said the Presidential
Powers (Temporary Measures) Act was peculiar as it gives the
president exclusive and overriding powers to make subsidiary legislation
which supersede Acts made by parliament.

"This is clearly
contrary to the universally accepted principle of separation of
powers among key pillars of the state - the executive, the legislature
and the judiciary," said Mapfumo-Muvingi.

"The president is
part of the executive. There is an overlap of the Act as it gives
the president more powers to make regulations for six months without
any ratification by parliament and this defeats its whole existence,"
said the lawyer.

"It is
also peculiar that the Statutory Instrument is seeking to amend
Acts of Parliament - the National
Incomes and Pricing Commission Act and the Education
Act. This is not proper because law principles dictate that
subsidiary legislation cannot amend an Act because it is inferior.
It's an anomaly," she said.

Mapfumo-Muvingi said
any amendment of an Act of Parliament should go through Parliament
which has the mandate to amend and make new laws as it is representative
of the views of the public.

"There is also a
contradiction in the enforcement of the regulations as the Finance
minister approved a 20% mark-up on the prices of some goods well
after the regulations were made. This was done without any corresponding
adjustments to salaries and consideration of input costs when prices
are escalating in the wake of shortages brought about by the price
blitz launched in July," said Mapfumo-Muvingi.

She said laws could not
be made to be enforced in retrospect as was the case with the decree
to revert to June 18 prices.

"Inflation has been
on the increase and people have been adjusting their budgets accordingly.
So how can you make a law to criminalise everyone? We can't have
an economy run through taskforces and commissions. What is the role
of relevant ministries and their technical staff who are supposed
to look into these issues?" she asked.

In a statement
on its analysis of the constitutionality and legality of the regulations,
the Zimbabwe
Congress of Trade Unions (ZCTU) legal department said the temporary
measures were illegal, unconstitutional and a violation of international
labour conventions.

It said government ratified
26 major ILO conventions, 87 regarding Freedom of Association, 98
on the right to organise and collective bargaining, and 105 on abolition
of forced or compulsory labour, among others. The ZCTU said Convention
87 was constitutionally protected under Section 21 of the Constitution.

"Section 21 states
that no person shall be hindered in his or her freedom of assembly
and ... to freely assembly and associate with other persons and
in particular to form or belong to political parties or trade unions
or other associations for the protection of his interests,"
the ZCTU said.

"Economic interests
are not listed under Section 21 as these things that can be done
under the authority of any law to justify such law as that which
is under discussion (Presidential {Powers Temporary Measures} Act).

"Moreso, the measures
taken cannot be said to be reasonably justifiable in a democratic
society (section 3). Even in an undemocratic society, such measures
would not be acceptable. The economic interests are unconstitutionally
listed under the Presidential Powers (Temporary Measures) Act,"
the ZCTU said.

The labour body said
the measures taken cannot be said to be reasonable in addressing
the economic demise, "especially when we take into account
that the demoralised employees are only 10% of the workforce and
these will shrink further because of demoralisation".

It noted that the regulations
were in violation of ILO Convention 87 and Section 4 of the Labour
Act which the government ratified. The convention obliges government
to encourage and promote the full utilisation of machinery for voluntary
negotiation between employers and employees through collective agreements.

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